Davis Brown Employment and Labor Law Blog

Employment Law Blog: FMLA and Holiday Absences - December 3, 2012

It is no secret that the holiday season can be stressful for many people. Depression and similar problems spike at this time of year and can increase the need for FMLA. This can sometimes be complex to assess over a holiday season as different standards may apply to the time taken. There are a couple of calculation issues to keep in mind as you approach a season where employees may have significant time off from work both due to FMLA and because of office closures or holiday time.

Under the Family and Medical Leave Act, employees are typically granted Family and Medical Leave based on their work week. So, if an employee averages thirty hours in a work week their FMLA allotment for twelve weeks would be 360 hours as opposed to an employee who averages 40 hours a week who would have an allotment of 480 hours over the course of your FMLA year. This becomes particularly important when we look at the issues of intermittent leave, generally common over the holiday season, as it is taken on a short-time basis. As you know, under the FMLA you can only charge the employee’s FMLA account the time the employee actually needs for FMLA. So if an employee only needs a couple of hours that is what they can be charged.

For those employees who are on long-term FMLA, specifically if they take FMLA in week-long increments, the holiday or time off would normally count as FMLA day(s) and therefore be deducted from their FMLA bank. If the employee is taking intermittent leave in shorter increments, the holiday is FMLA leave only if the office is open and the employee would normally have been scheduled to work at that holiday time. If you are a 24/7 business such as a hospital, you have to take into account the employee’s standard shift. If shifts are loosely structured and/or trading shifts is rampant it will be harder to claim the employee “was expected” to work. While this provides a greater benefit to the person on intermittent leave as opposed to a person who is taking significant long-term FMLA it is how the negotiations are structured.

Further, if you are shut-down for an extended period of time over the holiday, either for inventory or an annual two-week break for your work force as a whole, that time, because employees are not anticipated to be working, would not count as FMLA time.

You also need to look at various issues relating to bonuses, end of year pay-outs and similar items in regard to FMLA. Depending on how your policies are structured a person who had been on extended FMLA or other leave may or may not be entitled to such bonuses. These things are typically policy driven but remember the Department of Labor views the FMLA as a statute which allows and encourages leave as well as the preservation of benefit rights and therefore you should assess these issues generously.